The following are some thoughts I’ve been working out as I prepare to give a paper at UC Santa Barbara at the beginning of May on the relationship between theology and law. They’re mostly half formed, so questions and pushback are appreciated.

The recent signing into law of the Indiana Religious Freedom Restoration Act by Indiana’s governor to protect the “religious freedom” of individuals who want to deny services to others whose lifestyle offends their religious sensibilities is only one in a litany of examples of conservative Christians attempting to use the state to defend their desire to openly discriminate against people they don’t like. That reading of the case is obvious to most people and is one of the reasons these cases are pure gold for scholars who study religion, politics, and law. Laws like this are masqueraded as non-establishment when they seem to clearly represent an attempt to enshrine some form of religious morality as law.

In other words, what proponents of this legislation are doing is claiming that the legislation itself has no religious content (that would be establishment); it is instead circumscribing the rights of religious adherents to so that they may be “protected” to obey the tenets of their religion. Religion, here, is not explicitly defined as Christianity, even though it is predominately Christians who support and benefit from the bill. Presumably, the law would allow for anyone, on the basis of her religious beliefs and practice, to deny service to anyone else who threatens adherence to those beliefs and practice. Here’s the rub though–when cases come before higher circuit courts whose questions come under these sorts of laws (or are brought under the First Amendment more broadly) it becomes impossible for the court not to create some kind of working definition of religion that looks an awful lot like Christianity. We saw this tension in Oklahoma when Satanists petitioned for a statue of Baphomet to be placed in front of the Oklahoma State Capitol. Winnie Sullivan’s book The Impossibility of Religious Freedom details a case in Boca Raton, FL in which a judge, in attempting to avoid establishment, inadvertently “defines” religion along Protestant lines in his ruling on a case which had to do with Catholic and Jewish folk mourning practices and ends up excluding those practices as outside “religion.” (Sullivan, by the way, is the keynote speaker at the UCSB conference.) In other words, it is not clear at all that this law would actually protect a person denying service to a Christian because said Christian was offensive to her religious beliefs (e.g. a Muslim or Jew denying a Christian on the basis of her belief that Christians are idolaters–an occurrence quite unlikely to happen anyway.)

Cases like this are indeed worthy of our attention because they seem to expose the language of the secular state as truly inadequate to address complex religious questions and actually in constant violation of its own identity as secular and “neutral” with respect to religion when it attempts to issue rulings on these kinds of questions. They point to the inextricable link between religion and politics, and especially that the religious is always political.

I think we could go a step further though in showing just how deeply religious the secular political-juridical discourse is on questions of religion and religious freedom and how incredibly problematic that is. “Political theology” which first emerged as an explicit line of inquiry in the 1920s aimed to show the Protestant religious structure of Western political systems (albeit with a pretty inadequate and static understanding of theology.) I think that we need to begin to develop a “legal theology”–a discourse which can explain the legal arguments of these sorts of cases in terms of their underlying theological claims. Because they certainly are making theological claims and often very, very, bad ones.

The point is not simply to reinforce the religious character of the secular. That’s been done to death. Rather, I see it as a next step in trying to suss out what religious claims are actually being advanced, what that may reveal about the religious commitments of particular segments of a population, and, in the case of a state advancing an argument, what sorts of people are excluded or rendered illegible. In practice, I don’t think we can judge the merits of a legal argument on the basis of its quality as a theological argument. But casting these sorts of arguments in theological terms does help us to better understand their precise relationship to religion.

Lots of bloggers, Christian or not, have already gestured toward this regarding the Indiana legislation by pointing out that “refusing service” on the grounds of moral objection is not exactly a tenet of Christianity. In fact, it seems to be exactly the opposite. We might ask, “What does it mean theologically to demand the right to refuse service?” As we dig deeper into this question, the language of the law itself reveals to us a particular theological character of a segment of American Christians–namely, the value of moral purity over generosity and hospitality; a clear hierarchy of sins; a devaluing of the humanity of people who participate in the worst of these “sins,” and on and on. Nothing new there. But this reading of the law highlights the fact that the state is not neutrally “protecting” the rights of some Christians to morally object to certain behaviors. The affirmation of these objections, when read theologically, is betrayed by the clear preferences to particular types of not simply religious identification but very specific ways of viewing Christianity.

These types of situations can get even more complex though. In the Indiana case as well as the case Sullivan treats, it is the state that is implicated in this kind of backdoor establishment-as-non-establishment situation. It’s the state’s job to at least try really hard to give the appearance of a secular, neutral stance on religious questions, But there are other instances where groups that are explicitly religious attempt to utilize the language of the secular liberal state in order to protect themselves against lawsuits and other legal action. For example, in 2003 suit was filed against an Evangelical residential rehabilitation program which used funds from the state of Iowa to run their program in an Iowa prison. The suit argued, of course, that this constituted a violation of the First Amendment (establishment of religion) precisely because the methods of the organization (Prison Fellowship Ministries) were explicitly religious and being funded directly by the state (not to mention prisoners who participated in PFM’s program were given preferential treatment while incarcerated.)

The argument PFM made against this claim is rather astounding, particularly from a Christian point of view. They argued to the contrary that their program was secular because their goals aligned with those of the state–namely, the rehabilitation of inmates and their reentry into society as productive citizens. They claimed the lawsuit was yet another attempt on the part of “secularists” to remove religious organizations from the level playing field of public service and block them from providing services to people who volunteer to receive them. Their methods, they claimed, were irrelevant as long as the aims were secular. In other words, conversion was not a requirement to complete the program, and it is on that point specifically that the distinction between secular and religious hinged in PFM’s view. Their methods included Bible study, prayer, and other forms spiritual formation–all terms used by PFM, all claimed to be part of the overall “secular” project of their organization. They did end up losing the case. (Another book by Sullivan, Prison Religion: Faith-Based Reform and the Constitution details this case.)

This case gets into what I think is some even more interesting legal-theological territory than the Indiana case. Here, we might ask: What is the significance of the claim that rehabilitation and reentry into society is a “secular” and not a “Christian” goal? What is the relationship between “conversion” and the transformation of the person? In PFM’s view, what is entailed in conversion to Christianity? In other words, the argument advanced by PFM in this case significantly alters the aims of spiritual formation and discipleship from within the Christian tradition itself. But it also raises questions regarding the difficulty of distinguishing between “religious” and “secular” goals within the realm of public service.

How are states supposed to adjudicate these kinds of cases when the most important questions entail a decision about what does and does not constitute “actual” religious practice? I think asking these kinds of theological questions about the legal arguments brings this difficulty into sharper focus.

If anyone is interested, my paper at UCSB is going to deal with a famous European case in which plaintiffs sued the Italian government over crucifixes that were hung in public school classrooms. The state’s defense? That the crucifix is a symbol of democratic values, universal humanism, and human rights. You can find information about the conference here.

A couple months ago, my wife and I attended a theatrical performance given at Northwestern’s law school, which detailed the history of violence and systemic injustice in Chicago. It was an incredibly moving and powerful performance. Afterward, the director of diversity and inclusion programs for Northwestern moderated a time of response from the audience. One of the comments that struck me the hardest was given by a young white woman. She began by telling everyone she was a social worker and a justice advocate but then complained that whenever she has been involved in justice initiatives whether protests, attending council meetings, etc., her ideas are rarely taken into consideration. She was calling on minorities to be more open to white folks who just want to help. I was fuming in my seat but was amazed by the response of grace and patience that came from those who responded. The common thread was something like this: You have to earn the trust of these communities in order to participate. It doesn’t matter what knowledge or degrees you have. Even your righteous indignation at injustice doesn’t matter. You have been part of something that has systematically destroyed bodies of color in this country, and the first steps are to recognize that, accept the discomfort it is going to bring, and then, just be present. Presence is important, and trust will follow. But it takes time.

That was a huge step for me in learning to let go of my own anxieties over being an advocate for social justice. As a white, cis-gendered male who does not have any of the experiences of oppressed groups in this country, I have often worried about making mistakes, saying the wrong thing, thinking the wrong way. But over the last couple years with the help of voices like the ones I heard that night, I’ve come to realize that my problem was that, like that young woman, I was still making the issues about me–i.e. my fears and anxieties. Being an advocate means letting go of the fact that I’m a white, cis-gendered male, that I’m not going to be fully trusted as an advocate right away, and that my job at first is to just be present.

It seems that this is a message that much of “progressive Christianity” still needs to hear. Last summer, I wrote about my discovery of an ultra-conservative Christian blogger who was using the language of progressive Christianity against progressives themselves to try to argue that progressivism is cold, rigid, ideological, and just plain not fun. This morning, I’ve discovered that a number of progressive Christians have been wringing their hands over the exact same thing: They feel that progressive Christianity has become a purity culture where those who do not match ideologically are rejected much in the way that conservative Christians reject those they consider hedonistic.

This is a particularly attractive point of view especially for those who originally came from conservative backgrounds but now find themselves taking on a more progressive stance on political and theological issues. If you scroll down the comments of the culture of purity blog, you’ll notice Rachel Held Evans praising the author for articulating something she’s felt for a long time: that there’s a problem with the “everything is problematic” point of view. It’s not that surprising that a more conservative progressive like RHE would feel that way. On the one hand, one of the primary reasons that conservatives leave for more progressive pastures is the fact that the former has too many legalistic rules. They’re looking to “get away” from religion in order to find Jesus. So when what they thought was good ol’ free thinking progressivism starts telling them they have to think certain ways about political and social issues, they want to retreat back to somewhere in the middle.

On the other hand, that retreat back to the middle isn’t only about an aversion to rules. It’s also an aversion to the kind of politics that a truly progressive Christianity requires. This political aversion is also multi-faceted. It includes a desire to purify Christianity from politics, claiming that Jesus’ original message was not political in nature or decrying the merger of either Republican or Democratic politics with Christianity. But it’s also a fear that this connection between politics and Christianity will bring to the surface the very thing they’ve tried to repress: Their discomfort with minority groups. That isn’t necessarily their fault. It takes a lot of work to overcome the ways of viewing the world that we’ve been taught from a young age. But progressive Christianity is a demand to overcome those things.

Actually, Christianity is a demand to overcome those things. Therein lies the rub of this rejection of “progressive purity culture.” Forget the fact that “purity” is the wrong word or that neither progressive Christianity nor social justice movements need resemble anarchistic Marxism in order to be progressive and effective. This is about what the author calls complicity in injustice which he characterizes as the “idol” of progressive Christians. The heart of this complaint–like the heart of the ultra-conservative complaint against the same thing–is that progressive politics makes people feel bad about themselves, specifically white, cis-gendered male people. But once you’re a Christian, how you feel no longer matters. That’s why you become a Christian–so you can die to self and take up the cross. If we just did whatever we felt like doing, intentionally becoming part of Christianity (or any religion) wouldn’t mean anything at all. Social justiceisn’t about you and your feelings. The demand for inclusive language, for highlighting passive complicity in systems of injustice, for a radical commitment to social justice is not about maintaining an ideologically pure progressive culture.

The commitment to rooting out those things is about standing in solidarity with the victims of systemic injustice who do not have the luxury to ruminate over which of their oppressors they might offend in fighting to tear down those systems.

When this middle group of Christians makes issues of systemic injustice about themselves by pointing out that they feel bad when someone says they’re complicit in systemic injustice, that they’ve made a mistake, are thinking about something in a problematic way, should maybe just shut their mouth and listen for once, they have completely missed the point of the gospel’s call to serve the least of these–i.e. those who are threatened by systemic injustice. Is it going to be difficult to answer that call? Are you going to be faced with all the uncomfortable things I just listed? Yes. But that call is not about you–it’s about helping those under the threat of systemic injustice and listening to what they need.

It is not about you.

Ultimately, I think this is an issue of liberal verses non-liberal (e.g. radical) progressivism. I mean these terms in the political rather than theological sense. In other words, those who see themselves as outside of the walls of both progressivism and conservativism are beholden to a liberal politics which wants to claim a neutral ground on these sorts of contentious political issues. It’s a ground of natural rights, of complete “gospel freedom,” which is really just old fashioned liberal, Enlightenment freedom: “We’re all human beings”; “We’re called to love and care for everyone“; “Everyone has universal human rights,” etc. The problem is that these platitudes generate ways of thinking that tend to perpetuate current systems of oppression. In this case, they’re used as excuses to not go all in on advocacy because we might marginalize the oppressors whom, in the context of this liberal worldview, Jesus also calls us to love, care for, and forgive.

However, that’s not clear at all in the gospels. At no point does Jesus chastise the Pharisees and then turn back to them later and say, “Don’t worry you guys. As I’m radically turning your religio-political world upside down, I’ll make sure you feel cared for.” That doesn’t mean, however, that we can say Jesus likely didn’t care at all about what the Pharisees thought. On the contrary, he’s constantly charging them to change their minds and fix the system! After all, they’re the ones with the ability to do it. Similarly, the critique of liberal human rights discourse and/or middle Christian care for everyone discourse doesn’t mean we’re forced to fundamentally devalue the life of some human beings for the sake of others. That’s a false dichotomy. Honestly, how are the poor and oppressed any threat at all to the lives of those in power as long as the system keeping them there remains in tact? They’re no threat at all.

This complaint is a matter of seeing ourselves as the savior of those in need. It is not on us to solve the problems of minorities, the poor, or oppressed. But it is our responsibility to stand and be present with those who are seeking justice. If you feel excluded by that, then maybe some self-reflection is in order. Begin by understanding that working toward ending systemic injustice is not about you and your feelings.